Appeals court puts restrictions on NSL gag orders

National Security Letters upheld by appeals court, but with new restrictions …

A federal appeals court today upheld the National Security Letter provision of the PATRIOT Act, which a lower court had stricken down last year. But the three-judge panel also imposed a series of restrictions on the gag orders that routinely accompany the controversial requests for information, saying that the government must meet a First Amendment burden higher than that imposed by the statute, and requiring law enforcement to demonstrate the need for a gag order to a judge.

Today's decision is the latest chapter in Doe v. Mukasey, a legal battle that began over four years ago, when the American Civil Liberties Union filed suit on behalf of an unnamed Internet service provider that had been served with a National Security Letter. These investigative tools allow the Federal Bureau of Investigation to demand records from an ISP or phone company without obtaining a court order—and, in 97 percent of cases, to forbid the company from saying anything about the information request. The government's own internal watchdogs have discovered widespread abuse of NSLs since their scope was expanded by the PATRIOT Act of 2001.

The original lawsuit attacked NSLs on both First and Fourth Amendment grounds, and the ACLU won its first round in court. But in 2006, two developments changed the contours of the battle: First, the FBI ultimately withdrew the original record request that had prompted the court fight, leaving in place only the gag order—and the corresponding First Amendment challenge. Second, Congress amended the PATRIOT Act, and in U.S.C. 18 §3511 established a mechanism for ISPs served with NSL requests to challenge them, and their attached gag orders, in court. Once again, the ACLU prevailed, winning wholesale invalidation of the NSL provision. An appeal by the government brought the civil liberties group back into court this summer, before the Second Circuit Court of Appeals.

The Second Circuit today chose a less radical remedy than the lower court had opted for: it allowed the NSL and gag order provisions to stand, but construed the gag rules narrowly so as to pass First Amendment muster. While agreeing with the lower court that the statutory provisions providing for judicial review of the gag orders were constitutionally flawed as written, the Second Circuit held that either Congress or the Justice Department could adopt procedures to remedy the infirmity.

Under the current language of the statute, the FBI has discretion to bar an ISP served with an NSL from speaking about it. The ISP has the burden of appealing if it finds the gag order unreasonable, and the court may remove the gag if it finds that there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." If a high-ranking executive branch official certifies that disclosure does pose some danger, that assertion is to be "treated as conclusive unless the court finds that the certification was made in bad faith."

The court's ruling today narrows that language in several ways. First, the Second Circuit held that the alleged harm of disclosure cannot be any oldrisk to "life or physical safety," but must be appropriately linked to "an authorized investigation to protect against international terrorism or clandestine intelligence activities." Second, the Court held that "no reason" did not mean that literally any reason at all would do, but that the government must provide evidence establishing some specific reason for thinking such harm is likely, a standard not met if the justification "surmounts only a standard of frivolousness." Perhaps most importantly, it rejected the notion that Congress may dictate a standard of First Amendment review to judges, invalidating the statute's injunction to take the executive branch's word for it, absent some explanation of why disclosure would be harmful.

Today's ruling also held that the government could not stick ISPs with the burden of initiating litigation if they objected to a gag order—but here, the Court recognized that it did not have discretion to effectively rewrite the statute. Instead, the decision suggests a procedure of "reciprocal notice" that might allow the NSL review process to survive constitutional scrutiny. Such a procedure, the court wrote, might involve giving ISPs a certain amount of time to notify the FBI that they object to a gag order, at which point it would be incumbent upon the FBI to get a judge to ratify it. The ruling suggested that Congress could formally impose such a change, but that the Justice Department might also implement such a procedure on its own initiative.

ACLU Staff Attorney Melissa Goodman told Ars that while the court "didn't necessarily do everything that we were asking for," the group was pleased that the decision had affirmed the applicability of the First Amendment to these gag orders, and required the government to provide a judge with some substantial evidentiary basis for silencing a served ISP.

The government may now choose to ask the Supreme Court to review the Second Circuit's decision. If it does not, the case returns to the lower district court, where the Justice Department will have to make some substantive showing that the gag order is needed to protect national security. Since the underlying request for information was withdrawn over two years ago, that may prove an uphill battle even under a relatively deferential standard.